One thing that Iraq veteran Phillip Carter of McKenna Long & Aldridge knows for certain is that, on the ground in chaotic Baghdad, FBI agents investigating the Blackwater convoy shootings in September face daunting obstacles.
First, the FBI is late to the game. “Some of the witnesses have already been interviewed by the Iraqi government and some already have said what they want to say in the media. That’s a problem,” said Carter, a government contracts and international law attorney in McKenna’s Los Angeles office.
Second, he said, Iraqis are generally reluctant to interact with Americans because they fear being kidnapped or killed by retaliating insurgents. Third, it will be nearly impossible to reconstruct the scene or collect any physical evidence given the passage of time. Fourth, “just the sheer confusion of the battlefield,” Carter said, makes eyewitness testimony — American or Iraqi — so unreliable.
And finally, under what law or laws could the Blackwater private security guards be held accountable if necessary?
The Blackwater incident aside, the recent history of congressional efforts to deal with legal problems arising from the growing number of private security contractors working for the federal government can be summed up as follows:
“They fix the thing that immediately went wrong, but they don’t do it in a comprehensive way to eliminate the possibility for evading what they’ve just done,” said Kim Lane Scheppele, director of the Program in Law and Public Affairs at Princeton University’s Woodrow Wilson School.
Scheppele and Carter may be on opposite sides of the country, but they are among a group of attorneys and academics — some with specialties in government contracts, international law, military law and other areas — working quietly with each other, with Congress and with the Defense Department to find an effective solution to this legal puzzle. Their backgrounds are necessarily varied.
“This is a very complicated area,” said James J. McCullough, partner in the Washington office of New York-based Fried, Frank, Harris, Shriver & Jacobson, where he heads the firm’s government contracts practice. “You’ve got all these overlapping bodies of law that don’t often intersect and don’t fit well together.”
And for those plumbing this area for answers, the question is not only one of law or laws on the books, but also one of enforcement, or, in the words of one scholar, “law in action.”
McKenna’s Carter compares the three key legal regimes that could provide criminal jurisdiction in private security contractor crimes to a Venn diagram of three circles that barely touch. The three are the Uniform Code of Military Justice (UCMJ), the Special Maritime and Territorial Jurisdiction (SMTJ) and the Military Extraterritorial Jurisdiction Act (MEJA).
“Blackwater happened exactly on the seam of those three jurisdictional vehicles,” Carter said.
But how? The answer lies in Congress’ historical approach to problems under those vehicles, according to Scheppele and others: plugging the gaps one at a time.
A series of court decisions after World War II, generally involving crimes by the spouses or ex-spouses of military personnel, led to the general belief that civilians could not be prosecuted under the UCMJ.
The SMTJ and the MEJA were written before the wars in Iraq and Afghanistan and envisioned contractors in different roles and places. The SMTJ regulates civilians on military premises, noted Scheppele. It was the “fix” for those early court decisions involving the UCMJ and murdering spouses and it is not really a part of the current legal debate.
But contractors were not just working on military bases; they also were accompanying troops into zones of fighting. For a long time, contractors accompanying the troops were governed by Status of Forces Agreements (explicit agreements between the United States and a national government covering who handles crimes committed off a U.S. base).
